Podcast
Questions and Answers
What is meant by a 'self-binding precedent'?
What is meant by a 'self-binding precedent'?
- It is a precedent set by any court that must be followed by all other courts.
- It is a precedent where a lower court can overrule a higher court's decision.
- It is a precedent where the court is not bound by its own previous decisions.
- It is a precedent where the court is bound by its own previous decisions. (correct)
Which court is not self-binding according to the provided content?
Which court is not self-binding according to the provided content?
- High Court (correct)
- Divisional Court
- Supreme Court
- Court of Appeal
What is the 'Declaratory theory of law' regarding the self-binding precedent of the Supreme Court?
What is the 'Declaratory theory of law' regarding the self-binding precedent of the Supreme Court?
- It suggests that the judge makes new law in every decision.
- It posits that the judge only declares the existing state of law and cannot overrule itself. (correct)
- It states that the Supreme Court can overrule its own previous decisions.
- It implies that the Supreme Court decisions are merely persuasive.
Which of the following is an exception to the Court of Appeal being self-binding?
Which of the following is an exception to the Court of Appeal being self-binding?
What does 'per incuriam' refer to specifically?
What does 'per incuriam' refer to specifically?
What does the 'vertical precedent' imply in the hierarchy of courts?
What does the 'vertical precedent' imply in the hierarchy of courts?
When the Court of Appeal faces two contradictory previous decisions, what should it do?
When the Court of Appeal faces two contradictory previous decisions, what should it do?
Which court has a persuasive authority only usually followed?
Which court has a persuasive authority only usually followed?
According to O'Connor, why is the respect for precedent indispensable?
According to O'Connor, why is the respect for precedent indispensable?
What major legal concern was highlighted after the SCOTUS's 2022 term?
What major legal concern was highlighted after the SCOTUS's 2022 term?
What was Castor's view on the use of pre-Revolutionary historical precedents?
What was Castor's view on the use of pre-Revolutionary historical precedents?
What primary issue does the case Dobbs v. Jackson address?
What primary issue does the case Dobbs v. Jackson address?
Why did some states want to outlaw references to the common law?
Why did some states want to outlaw references to the common law?
How did Trump's lawyers view the precedent related to impeachment proceedings?
How did Trump's lawyers view the precedent related to impeachment proceedings?
Which statement reflects Justice Alito's view on Roe v. Wade?
Which statement reflects Justice Alito's view on Roe v. Wade?
What historical analogy did Castor use to criticize using pre-Revolutionary precedents?
What historical analogy did Castor use to criticize using pre-Revolutionary precedents?
What is the primary function of Rule 11 of the FRCP?
What is the primary function of Rule 11 of the FRCP?
Which of the following best defines 'judicial precedent'?
Which of the following best defines 'judicial precedent'?
What does the term 'ratio decidendi' refer to?
What does the term 'ratio decidendi' refer to?
Which case is mentioned as an example of the application of the rule of precedent?
Which case is mentioned as an example of the application of the rule of precedent?
Which of the following is NOT a parameter affecting the nature of the rule of precedent in English Law?
Which of the following is NOT a parameter affecting the nature of the rule of precedent in English Law?
What does 'obiter dictum' refer to?
What does 'obiter dictum' refer to?
What is the principle behind the doctrine of stare decisis?
What is the principle behind the doctrine of stare decisis?
Which statement distinguishes 'questions of law' from 'questions of fact'?
Which statement distinguishes 'questions of law' from 'questions of fact'?
Study Notes
Judicial Precedent
- The ratio decidendi must differ, as understood in the case Miller v Jackson of the Court of Appeal.
- The jurisdiction delivering the decision:
- House of Lords (until 2009) / Supreme Court today
- Court of Appeal (only one in UK) – self-binding with three exceptions
- High Court – no self-binding
Authority of Precedent
- Vertical proceedings in common law: more complicated with self-binding precedent
- Vertical precedent: High Court is bound by the judgment of Appeal; Court of Appeal is bound to the judgments of the Supreme Court (not those of the High Court)
- Divisional Court: a formation of the High Court with at least two judges involved in judicial review proceedings – bound by the Court of Appeal
- High Court has persuasive authority: usually followed
Self-Binding Precedent
- Court of Appeal is bound by its own judgments, but with three exceptions:
- Confronted with two previous decisions that contradict each other
- Per incuriam judgment: a judgment deliberated by the Court of Appeal that was taken carelessly
- Previous decision has been overruled
Declaratory Theory of Law
- Concerns the self-binding precedent of the Supreme Court
- States that it is impossible to overrule itself – the judge can't make law, the judge only declares the existing state of law
Rule of Precedent in the US
- Debate about the adoption of the Common Law in the US is still not 100% settled
- Concerns about using precedents, even in the impeachment trial of Trump
- Example of second impeachment trial of Trump: can we institute impeachment proceedings against an officer of the state who's no longer in office?
Judicial Precedent in the US
- Major concerns about precedent after SCOTUS's 2022 term (Dobbs v. Jackson)
- According to Justice Alito, Roe v. Wade "was wrong from the start. Its reasoning was exceptionally weak, and the decision had damaging consequences."
- Rule 11 of the FRCP: stops litigation abuse by making sure legal papers are fair
Foundation of Judicial Precedent
- Based on the stare decisis: stand by the decision / let the decision stand
- The term "judicial precedent" has two meanings:
- The process whereby judges follow previously decided cases
- Reference to the decided case itself - a precedent which may be relied on in the future
Precedent in English Law
- Two parameters affect the nature of the rule of precedent:
- Varying scope with respect to content
- Varying scope with respect to jurisdiction
- Application: Miller v. Jackson – sometimes it can become complicated
- Focus on the content of the decision:
- Ratio decidendi: the principle of law on which a decision is based
- Obiter dictum (dicta): literally "something said by the way"
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Description
Learn about Rule 11 of the Federal Rules of Civil Procedure, its purpose in preventing litigation abuse, and the concept of judicial precedent based on stare decisis.
